SPENCER: Lawsuit might force NCAA to backpedal

The Jerry Sandusky/Penn State scandal is the story that just keeps on giving.

With Gov. Tom Corbett's surprising antitrust lawsuit against the NCAA and criminal trials still to come, it's not going away anytime soon. And it shouldn't. But not everyone in my business thinks so.

One of the most surprising things about the lawsuit is the antipathy with which it was met by many in the media.

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How dare our hack of a governor sue an organization as august as the NCAA? This is nothing but a political stunt by a politician whose approval ratings are sinking faster than a bowling ball in a swimming pool.

It's time to move on. It's time to let the victims "heal."

The lawsuit has been called "shameful," "embarrassing" and "frivolous."

But is it?

Not according to Washington, D.C.-based antitrust attorney David Balto. He sees Corbett's actions on behalf of the commonwealth as "completely appropriate" and a case he has a "pretty good chance" of winning.

"The NCAA is famous for coming up with 'my way or the highway' policies and after-the-fact justifications for those policies," Balto told me in a phone interview Monday.

He said the lawsuit is "totally according to Hoyle and a well-recognized and appropriate action," especially for a governor acting "to defend the interests of the citizens of his state."

Balto has practiced antitrust law for 20 years. And for you suspicious types, he has no connection to Penn State, other than he once took his son to a game in Happy Valley (they lost). He lives in Maryland but was born a gopher, a Minnesota Golden Gopher. He's not even a Republican, I don't think. He worked in the Antitrust Division of the U.S. Justice Department when Bill Clinton was president and went on to be policy director of the Bureau of Competition at the Federal Trade Commission.

So when he says there's a pretty good chance Corbett may be able to prove "some element of competitive harm here," a serious person should take that seriously.

As for the accusation that Corbett is trying to score political points by taking on the NCAA -- well, that would be a shocker: A politician playing politics. Imagine that! But let's not be children here. Does any hep person believe that the newly elected state attorney general, Democrat Kathleen Kane, wasn't playing politics when she promised to investigate Corbett's handling of the Sandusky case when he was A.G.?

Whether Corbett did or didn't do a good job getting Jerry Sandusky behind bars in a timely fashion has nothing do with whether the NCAA acted fairly and legally in meting out punishment to the state's largest educational institution.

Regardless of being told by media scolds how they ought to feel about Corbett's shameful lawsuit, most Pennsylvanians are all for it. A recent poll shows 52 percent support the governor's taking on the NCAA, and only 34 percent opposed (14 percent don't know). That's a pretty substantial margin, especially given the media bashing that the suit has been receiving.

This popular support shouldn't be surprising given the draconian sanctions the NCAA forced Penn State to accept under threat of its "death penalty" -- no football for five years. These penalties were judged by the general public to be wildly abusive and patently unfair given that they had the effect of punishing thousands of innocent people.

For those who claim the harsh sanctions are justified as a way of showing solidarity with Sandusky's victims, well maybe they should listen to one of them.

Victim No. 4 from Sandusky's criminal trial has come out publicly against the sanctions through his lawyer.

"He was particularly upset the sanctions were so broad that they impacted people who had absolutely nothing to do with the abuse or the failure to properly report the abuse," attorney Ben Andreozzi said on his client's behalf. "The NCAA acted as if it were the victim in this tragedy, and failed to even take the pulse of the real victims before imposing its will."

That might have been reasonable. But then this wasn't really about what would help the victims. This was all about the NCAA winning the praise of a media gone wild with demands of retribution for PSU's administrative failures, some real, some imagined and many still unproven.

But in pursuit of huzzahs from the lynch mob, NCAA President Mark Emmert miscalculated. He invited this lawsuit and he got it.

Balto told me he believes the case could well be "fast tracked" by the Middle District of Pennsylvania federal court. The district is known as the "rocket docket" for moving cases along. And it will be heard by Chief Judge Yvette Kane.

No doubt the NCAA will file a motion to dismiss and that could be heard as early as this summer. If Judge Kane, a Clinton appointee, doesn't dismiss the case out of hand, the NCAA is in for a world of painful discovery.

My prediction: If the case isn't dismissed, the NCAA will quickly negotiate a settlement, reducing the sanctions against PSU substantially. Emmert and the NCAA will do that to avoid the risk of being declared in violation of the Sherman Act. And that could put the very existence of the NCAA as a trade organization at risk.

And where would that leave our shameful and unpopular governor? I'll tell you where: A lot more popular than he is today.

Gil Spencer's column appears Sunday, Wednesday and Friday. Check out his spencerblog every day at delcotimes.com.

Watch 'Live From the Newsroom' Wednesday night at 7 as Gil Spencer joins Daily Times Editor Phil Heron and columnist Chris Freind debating the merits of Gov. Tom Corbett's lawsuit filed against the NCAA. It's at 7 on DelcoTimes.com.